The recent opinion of the Court of Appeals of Mississippi in Mask v. State, 2008 WL 2498236 (Miss.App. 2008), is what I regard as an incomplete decision. In Mask, on February 29, 2004, Charles Bascomb and his son, Jason Zubke, were parked in a car on County Road 306 in Alcorn County, Mississippi when Mask approached the car and shot Bascomb in the back. Bascomb died five days later, and for twenty days thereafter, Mask evaded numerous attempts for his arrest. Mask was eventually arrested in Alcorn County, whereupon he gave two conflicting accounts of the shooting to Investigator Michael Beckner. According to Mask's first account, he shot Bascomb when Bascomb and he were fighting over a gun. During a second interrogation, Mask claimed self-defense, alleging that he had to shoot Bascomb or Bascomb would shoot him.

At Mask's murder trial, Mask did not raise the defense of self-defense (indeed, he presented no witnesses), and Beckner testified concerning both of Mask's accountings of the shooting. The court thereafter accepted the state's jury instruction, which informed the jury that Mask's evasions from the police in the aftermath of the shooting were circumstantial evidence of a guilty state of mind. After Mask was convicted of murder, he appealed, claiming that the trial court erred in giving this instruction.

Mask correctly noted that a jury instruction on flight is appropriate only where the flight is unexplained and not where there might have been another reason beyond guilt that precipitated a defendant's flight. He then cited to the Supreme Court of Mississippi's opinion in Tran v. State, 681 So.2d 514, 519 (Miss. 1996), in which the defendant claimed self-defense and that he fled from the scene of the murder for fear of retaliation, and the court held that:

"where the defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value. A flight instruction will have particular prejudicial effect in a case where self-defense is argued. Where the person against whom self-defense has been exercised...flight seems logical and necessary....To suggest and highlight, through the sanction of a court granted instruction, that the defendant's flight was possibly an indication of guilt suggests that the court does not accept the self-defense argument."

The Court of Appeals, however, found Tran to be distinguishable. One distinguishing ground was that the defendant in Tran explained that he fled because he was trying to avoid retribution, whereas there was no evidence that Mask fled because he feared retribution. Based upon the above cited passage from Tran, though, this seems to be an irrelevant distinction because the Court in Tran held that a flight instruction is automatically inadmissible in cases where defendant argues self-defense, without any mention of a need for a fear of retaliation (altough I don't necessarily agree with such a broad holding).

The second ground was that the defendant in Tran actively pursued the defense of self-defense, whereas in Mask, the only evidence of the possibility of self-defense came from Investigator Beckner's testimony regarding what Mask told him during the two interrogations. To me, this provided a legitimate reason for the court in Mask to depart from Tran, but keep in mind that Tran merely said that the flight instruction is per se inadmissible when the defendant argues self-defense. To me that leaves open the (strong) possibility that a court should engage in a somewhat rigorous analysis of whether a flight instruction is proper when there is evidence that a defendant acted in self-defense, even when the defendant himself doesn't argue self-defense. Instead, the court in Mask merely found that Tran was inapplicable and thus curtly concluded that the flight instruction was properly given.